Masterpiece Cakeshop v. Colorado Civil Rights Commission

Franklin Graham can’t help himself. Why not help the local economy by giving this job to a Charlotte baker?

2 reasons:

He is a culture warrior

He wants to control his father’s legacy

Today we’re celebrating what would’ve been my father @BillyGraham‘s 100th birthday. I appreciate Jack Phillips of Masterpiece Cakeshop in Colorado coming to @TheBGLibrary to bake the birthday cake we’re serving today. I know that it would’ve meant so much to my father. pic.twitter.com/ce4cvZfdhD

Just to be clear: This post is not about whether the Supreme Court decision on Masterpiece Cakeshop was right or wrong. (If it was me, I would have baked the cake). It is about Franklin Graham using such a divisive figure to promote his father’s birthday.

According to a recent piece by Kate Shellnut at Christianity Today, a 2016 Pew survey found that 35% of white evangelicals support same-sex marriage, while 44% of black Protestants support same-sex marriage.

Notice that the survey compares white EVANGELICALS with black PROTESTANTS, so the comparison does not tell us as much as we think it does. (Although it is also fair to say that a large number of black Protestants are evangelical in theology). Nevertheless, it is clear that African-Americans are more than open to same sex marriage than are white evangelicals.

Shellnut asked four African-American Christian leaders to reflect on the Masterpiece case. They are:

As an African American woman, it might seem reasonable for me to have qualms about the recent ruling the Supreme Court delivered in support of a Christian baker. Jack Phillips’s refusal to serve these individuals smacks of the same kind of infringement that African Americans in this country experienced. However, three factors give me pause in this line of thinking and lead me to applaud the Supreme Court’s decision.

First, the case is not about discrimination, but religious conscience. The civil rights movement was started because a whole class of people were pervasively denied acceptance based on who they were biologically. Discrimination ensued because they weren’t deemed to be fit to share the same services, space, or civic obligations in a white society.

The Masterpiece Cakeshop case wasn’t about the people, but the ceremony. I think likening the two cases—discrimination against blacks and denial of cake-baking for a ceremony—undermines the cause of the civil rights movement, which was about affirming the dignity of personhood irrespective of lifestyle choices.

I can appreciate arguments that say whites believed upholding the purity of races was rooted in their Christian convictions; however, the racist line of thinking that prevailed for so long has no basis in Scripture (consider the marriages of Solomon and Moses), whereas endorsing same-sex marriage is explicitly prohibited.

Second, reliance on state-sanctioned intervention can have negative implications for how we value fellow image bearers apart from their choices. I confess that I have a love-hate perspective toward the governmental intervention needed to address discrimination against African Americans. Unfortunately, we ultimately had to rely the state to define discrimination rather than God himself and his requirements for what kind of activity his people should or should not support.

Lastly, equating refusal to participate in same-sex ceremonies with active discrimination against a class of people puts us in a precarious position of lending support to same-sex marriage because we don’t want to reject people. We ought to be free to distinguish between the value of persons and the values they espouse. At the end of the day, commitment to Christian convictions matters most.

Let us weigh in where angels fear to tread. Where is the religion in this case and what kind of religion is it?

Mr. Phillips’s religion is described by Justice Anthony Kennedy as follows:

Phillips is a devout Christian. He has explained that his “main goal in life is to be obedient to” Jesus Christ and Christ’s “teachings in all aspects of his life.” And he seeks to “honor God through his work at Masterpiece Cakeshop.” One of Phillips’ religious beliefs is that “God’s intention for marriage from the beginning of history is that it is and should be the union of one man and one woman.” To Phillips, creating a wedding cake for a same-sex wedding would be equivalent to participating in a celebration that is contrary to his own most deeply held beliefs.

That is all. That qualifies Mr. Phillips for constitutional attention.

What do we know about Mr. Phillips’s religion from this? We know that he calls himself a Christian. We are told that he understands this to mean that his whole life should reflect fidelity to the teachings of Jesus. Virtually all Christians (perhaps a strong majority of Americans) could affirm something like this. Presumably that would not be enough to qualify a person for special legal treatment. What more is required for such treatment is a bit murky.

If we look to the religious claims in past cases, before the sincerity test was standardized, we see that Mr. Reynolds in the famed Mormon polygamy case said he would be damned if he did not practice plural marriage. The Court made a careful, if bigoted, analysis of Mormon religious teaching. The Amish families in the Yoder case said that sending their children to high school would destroy the Amish religious community. The Court reported lovingly and at length on the Amish religious way of life. Mr. Smith and Mr. Black said that ingesting peyote was a sacramental mandate, central to their weekly worship. Dissenting justices rehearsed the history of peyote use in the Native American Church and speculated about the Church’s benefits for remediating Native American alcoholism.

The Court no longer traffics in such amateur philosophizing about religion and religious practice. Religion today has become standardized and formatted for the purposes of laws protecting religious freedom.

What else does the Court report about Mr. Phillips? What makes this Colorado baker so obviously deserving of special treatment, when Mr. Reynolds and Mr. Smith and Mr. Black were not? According to the Court,

He is “devout.”

He believes that God intends marriage to be restricted to heterosexual couples.

He believes it would be wrong for him to sell a cake he created to a same-sex couple for their wedding.

Let us consider each of these in turn and how they add up to the core of what counts as religion today….

Lawrence B. Glickman teaches American history at Cornell University. In this very interesting piece at Boston Review, he wonders why the Supreme Court continues to treat businesses as people. And why does the Court continue to favor the rights of businesses over the rights of individual consumers and employees?

Here is a taste:

Is there a meaningful distinction between Jack Phillips, “an expert baker and devout Christian,” as Justice Anthony M. Kennedy described him, and the company he owns, Masterpiece Cakeshop, a limited-liability company? The Supreme Court’s 7–2 ruling in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission suggests not. The New York Times called the decision—which favored Phillips’s right to refuse service for religious reasons—“narrow” because it did not rule on the broader issue of discrimination against gay men and lesbians based on rights protected by the First Amendment. However, in terms of the relationship between capital and labor, the decision was anything but narrow. The Court’s majority opinion, written by Kennedy, is remarkable for its uncanny and unproblematic conflation of Phillips, the baker, and his business, the bakery. By insisting that the key issues in the case are Phillips’s artistic expression and his religious liberty, the Court was silent on the question of how a company can possess these rights. It did so by assuming not only that corporations are people, but that the cakes made by Masterpiece Cakeshop are produced by Phillips alone, when in fact we know that the bakery has other workers.

The Court saw fit to mention Phillips’s employees only once, in a remarkable sentence written by Clarence Thomas (joined by Neil Gorsuch) concurring with the judgement of the majority but making much broader claims about the rights of businesses to handpick their customers. Seeking to show both that Phillips is a sincere Christian and that his bakery reflects Christian values, Thomas wrote, “He is not open on Sunday, he pays his employees a higher-than-average wage, and he loans them money in times of need.” The last two clauses of the sentence are meant to demonstrate that Phillips is a good and generous employer, although one might wonder why well-compensated employees would need loans from their boss in order to make ends meet. But the first part of the sentence is particularly jarring. Presumably, Thomas meant to suggest that Phillips did not open his business on Sunday. But Thomas literally wrote instead that Phillips himself “is not open on Sunday.” Since it is impossible for a person to close or be open on Sunday or any other day of the week, Thomas here marked the extent to which the Court identified Phillips with the bakery.

The significance of this sentence is enormous and not just because, for Thomas and the other justices who sided with the majority, there is no appreciable difference between the baker and his company. (In this, the Court mimicked the language of Phillips himself, who in a 2014 video for the New York Times alternated between using “we” and “I” to describe the work of the bakery.) By extension, this means that the religious views and artistic contribution of the company’s workers are irrelevant. Phillips’s employees are merely props in Thomas’s morality tale—figures who receive the boss’s Christian charity but are otherwise unmentioned and invisible. The decision renders their status as workers for Phillips’s limited-liability company morally and legally immaterial.

Ginsburg’s historical argument is a strong one. Indeed, religious liberty or the Free Exercise Clause has never been directly applied to a for-profit corporation. But this does not mean there is no precedent for considering a for-profit corporation a “person.” As the prominent American historians at Backstory have recently reminded us, the post-Civil War Supreme Court affirmed on multiple occasions that corporations (mostly railroads) are covered under the Fourteenth Amendment. Corporate personhood has a long history.

But can a corporation have religious liberty? I obviously don’t know how Roger Williams, Isaac Backus, James Madison, or Thomas Jefferson—the great early American defenders of religious liberty—would have responded to Burwell v. Hobby Lobby, but there is little doubt that they would have considered such a proposal to be very strange. For these men, religious liberty was a very personal thing. Religious liberty was meant to protect deeply held spiritual convictions that found their home in the “soul” or “conscience.” Religious liberty was an inherently Protestant concept. It stemmed from the belief that people could read the Bible for themselves and draw their own religious conclusions. It has always been a religious idea applied to individual human beings. Can a for-profit cooperation have a soul? Can it truly practice liberty of conscience?

We might also ask, as political scientist Patrick Deneen has done so brilliantly, whether a big box store such as Hobby Lobby, located in a massive shopping center constructed on a slab of asphalt at the edge of town, can be considered a person. And if it is a person, can it exercise religious liberty? What happens to a traditional and historical understanding of a person—a human being embedded in political, religious, and local communities exercising virtues such as friendship, love, duty, and citizenship—when it is defined in the context of a soulless corporate world with the primary purpose of maximizing profits?

Caroline Tanner of USA Todaycalls our attention to a recent poll that shows 51% of white evangelicals believe that cake-bakers and others can refuse services and products to LGBT individuals. Frankly, I am surprised the number is so low.

Here is a taste:

For white evangelicals, religious freedom is not a one-size-fits-all issue, though, and varies based on the type of religion a business owner subscribes to, and they are most supportive (60%) of fellow Christian small business owners.

When asked if they supported allowing small business owners in their state to refuse to provide products or services to LGBT individuals if doing so violates their religious beliefs:

Christian small business owners: 60% of white evangelicals vs. 43% of Christians overall

Jewish small business owners: 55% of white evangelicals vs. 41% of Christians

Muslim small business owners: 46% of white evangelicals vs. 36% of Christians

Mormon small business owners: 50% of white evangelicals vs. 38% of Christians

Their opposition:

Christian small business owners: 43% of Christians overall vs. 27% of white evangelicals

Jewish small business owners: 43% of Christians vs. 26% of white evangelicals

Muslim small business owners: 44 % of Christians vs. 32% of white evangelicals

Mormon small business owners: 44% of Christians vs. 30% of white evangelicals

Of all the Christians surveyed, white evangelicals were more likely to say that Christians face discrimination in the United States today (42%), more so than LGBT individuals (32%). More Christians (36%), Catholics (34%) and Protestants (35%) said that LGBT community faces more discrimination than themselves.

The Supreme Court on Monday ruled for a Colorado baker who refused to create a wedding cake for a gay couple.

In an opinion by Justice Anthony M. Kennedy that leaves many questions unanswered, the court held that the Colorado Civil Rights Commission had not adequately taken into account the religious beliefs of baker Jack Phillips.

In fact, Kennedy said, the commission had been hostile to the baker’s faith, denying him the neutral consideration he deserved. While the justices split in their reasoning, only Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented.

Kennedy wrote that the question of when religious beliefs must give way to anti-discrimination laws might be different in future cases. But in this case, he said, Phillips did not get the proper consideration.

“The Court’s precedents make clear that the baker, in his capacity as the owner of a business serving the public, might have his right to the free exercise of religion limited by generally applicable laws,” he wrote. “Still, the delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach. That requirement, however, was not met here.”

The Supreme Court kicked the ball down the road and made a strong statement about respecting sincerely held religious beliefs.

If I read the decision correctly, it seems that the Court ruled in favor of the baker because the Colorado Civil Rights Commission did not respect his First Amendment religious rights. The Commissioner called baker Jack Phillip’s faith “one of the most despicable pieces of rhetoric that people can use.” He compared Phillip’s “sincerely held religious beliefs” to slavery and the Holocaust. As a result, Justice Kennedy argued in his majority opinion: “the Court cannot avoid the conclusion that these statements cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case.”

In other words, the Colorado Civil Rights Commissioner crossed a line. The Court is a sending a message that these sloppy attacks on sincerely held religious beliefs will not be tolerated. If you think Phillips should be legally required to bake the cake for the gay couple, take your frustrations out on the Colorado Commission, not on the Supreme Court.

The decision also implies that another cake-baking case might be decided differently. Kennedy writes:

Phillips was entitled to a neutral decisionmaker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided. In this case the adjudication concerned a context that may well be different going forward in the respects noted above. However later cases raising these or similar concerns are resolved in the future, for these reasons the rulings of the Commission and of the state court that enforced the Commission’s order must be invalidated.

The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.